whereas the supposed trader does not trade in axes. In fine, one may not register as a mark for a vehicle for goods a device which on its face refers to the goods and not to the vehicle itself.

The Examiner's decision is affirmed.

EX PARTE PRIOLEAU AND PRIOLEAU.

Decided June 13, 1917.

255 O. G., 1053.

APPLICATIONS-JOINT AND SOLE-SOLE APPLICATION NOT A CONTINUATION OF JOINT APPLICATION.

Where after the filing of a joint application an application is filed by one of the applicants alleging that he in fact was the sole inventor, Held that this application cannot be regarded as a continuation of the joint application.

ON PETITION.

METHOD OF CARRYING AND CONDENSING THE VOLATILE GASES DISTILLED FROM CARBONACEOUS MATERIAL.

Messrs. Wiedersheim & Fairbanks and Mr. Wm. W. Deane for the applicant.

EWING, Commissioner:

This is a petition that the Examiner be directed to enter an amendment filed April 14, 1917, and that the petition and oath filed on that date be substituted for the original petition and oath and that the "preamble and signing clause and signature of the specification filed on that date "be substituted for the corresponding portions of the substitute papers" filed February 26, 1916.

The application, which was filed November 24, 1915, is an application for patent on the alleged joint invention of J. R. H. Prioleau and Wm. Louis St. Julian Prioleau. It is signed J. R. H. Prioleau, by his attorney in fact, W. L. St. J. Prioleau, and W. L. St. J. Prioleau.

On February 26, 1916, prior to any action by the Office, complete papers were filed, signed by the two parties. These papers were accompanied by a statement as to the reason of filing the informal application and by a certified copy of a power of attorney granted by John Randolph Hamilton Prioleau to Wm. L. St. Julian Prioleau. On April 15, 1916, the Examiner called attention to certain informalities in the case and stated that one of the claims covered an old process. An amendment was filed on April 6, 1917; but before that amendment was acted upon a complete set of papers was filed by Wm. L. St. J. Prioleau, who alleged that he was the sole

inventor of the invention disclosed therein. This paper was accompanied by a request that the petition and oath therewith filed be substituted for the petition and oath originally filed and that the preamble, signing clause, and signature be substituted for the corresponding portions of the papers then on file. It was stated in this communication that the papers were executed by the parties as joint inventors, whereas Wm. L. St. J. Prioleau was the sole inventor, as fully explained in the affidavit filed in a copending application, No. 40,776. The Examiner held that he had no authority to file these. substitute papers for the original papers and that, as the action of April 14, 1917, was not such a one as the condition of the case required, the application was abandoned. It is from this holding that the present petition is taken.

The original papers were informal, but were accepted under my ruling that such papers might be accepted to avoid the holding that the application was not filed within twelve months of the foreign application. (See ex parte Kramer, C. D., 1917, 36; 238 O. G., 986.)

It is well settled that a joint application cannot be changed into a sole application, or vice versa, and that a joint application cannot be regarded as a continuation of a sole application, or vice versa. (See ex parte Erne and Bridges, C. D., 1897, 197; 81 O. G., 2247; ex parte Gordon, C. D., 1904, 20; 108 O. G., 561; ex parte Weil and Grant, C. D., 1911, 249; 173 O. G., 1081; American Casting Machine Co. v. Pittsburgh Coal Washer Co., C. D., 1917, 248; 237 O. G., 621; 237 Fed. Rep., 590.)

Nor is the fact that the petition does not request that the entire papers filed April 14, 1917, be substituted for those already on file material. The petition is, in effect, that a joint application be amended to a sole application.

It is also stated that the original papers filed were informal and that the present papers should be substituted therefor. These papers. were filed more than twenty-one months after the filing of the British patent. The case therefore does not come within the provisions of the act of August 17, 1916.

It being admitted that the original joint applicants were not joint inventors, no patent could be granted on that application, and, as above held, the application cannot be transformed into a sole application. No complete sole application has been filed, as the papers filed April 14, 1917, were not accompanied by a fee, and the fee on the original application not having been paid by mistake could not be transferred.

But even if the sole application could be regarded as complete by transferring the fee thereto under the theory that it was paid by mistake, allowing the original drawing to be used, no patent could

be granted on the sole application, since it was filed more than twenty-one months after the filing of the British application, on which a patent has been granted. (See sec. 4887, Rev. Stats., and act of August 17, 1916.)

The petition is denied and the patent is refused.

ROYAL EMBROIDERY WORKS, NADAY AND FLEISCHER v. E. & Z. Van RAALTE.

Decided August 21, 1918.

255 O. G., 1054.

TRADE-MARKS-OPPOSITION AND INTERFERENCE-OPPOSITION SUSPENDED.

Where an opposition involves the same parties and the same marks and goods that are involved in an interference proceeding, Held that the opposition should be suspended until the interference is terminated, since in the interference the Patent Office has more liberty of action than in the opposition proceeding.

APPEAL from Examiner of Interferences.

TRADE-MARK FOR JERSEY CLOTH IN THE PIECE, VEILS AND VEILING MADE OF JERSEY CLOTH.

Messrs. Munn & Co. for Royal Embroidery Works, Naday and Fleischer.

Mr. Joseph L. Levy and Mr. Frank C. Somes for E. & Z. Van Raalte.

NEWTON, Commissioner:

This is an appeal from the decision of the Examiner of Interferences suspending the opposition proceedings in this case in view of a pending interference proceeding, No. 42,549, between the same parties and involving the same marks and goods as are involved in the present opposition proceedings.

The points involved are (1) should one of these proceedings be suspended in case both are running at the same time; (2) if one should be suspended, which one, and (3) are there any peculiar equities in this case requiring the suspension of the interference rather than the opposition?

(1) As to the first proposition, there seems to be every reason justifying the suspension of one of these proceedings instead of having both run at the same time. The same parties are involved, and a judgment in one will nearly always, if not always, settle the issue in the other. The saving of time to the Office, as well as expense and time to the attorneys and applicants, would far overbalance any

!

liability of the judgment in one not settling the issue in the other. It is held, therefore, that one of these proceedings should be suspended.

(2) As to which proceedings should be suspended, it was held in Coombs Milling Company v. Barber Milling Company (C. D., 1911, 27; 163 O. G., 727) that

Where after the filing of a notice of opposition to the registration of a trademark by the owner of a registered trade-mark an interference is declared between the registration of the opposer and the application, Held that the interference should not be suspended pending the final determination of the opposi tion except by consent of the parties.

And in addition to that decision it might be noted that section 7 of the Trade-Mark Act of 1905 gives to the Patent Office more liberty of action than the opposition section in that the Commissioner is empowered in the former to refuse to register both of two interfering marks, or he may register the mark for the party first to adopt and use and refuse to register the other, whereas in an opposition proceeding, under section 6 of the same act, only the right of opposition of one of the parties to the registration by the other party is decided.

If, for example, the present opposer should fail to make out a valid objection to registration by the Van Raaltes, that would end the opposition proceedings, although the Van Raaltes themselves might not be entitled to registration, and hence that might not end the interference proceedings. In other words, the interference proceedings are in a sense of a broader nature than the opposition proceedings, and for that reason ordinarily the opposition proceedings should be suspended rather than the interference proceedings.

(3) Van Raalte points out that he will be the last to take testimony in the opposition proceedings, an admitted advantage, whereas Naday and Fleischer would take testimony last in the interference proceedings; but this state of facts has resulted from no fault of Naday and Fleischer. It appears that the Office should have declared an interference between these marks before Van Raalte's mark was published, but for some reason it did not. This being true, there was no way to provoke a conflict by Naday and Fleischer except by their filing an opposition proceeding, and Naday and Fleischer should not now be penalized by making them take testimony first, which they would have to do if the interference were suspended instead of the opposition proceedings.

Under the circumstances and for the reasons enumerated the decision of the Examiner of Interferences suspending the opposition proceedings is affirmed.

EX PARTE THE STANDARD PAINT COMPANY.

Decided July 18, 1918.

256 O. G., 223.

TRADE-MARKS-" WYRON FOR NAILING-STRIPS-NOT DESCRIPTIVE.

The term " Wyron," as applied to nailing-strips for fastening flexible roofing-sheets, Held not descriptive, since it does not describe any property or any quality of the goods or any feature connected therewith.

ON APPEAL.

TRADE-MARK FOR ROOFING ACCESSORIES, PARTICULARLY ROOFING-FASTENERS.

Mr. Lester L. Dittenhoefer for the applicant.

NEWTON, Commissioner:

This is an appeal from the Examiner of Trade-Marks holding that "Wyron," for

roofing accessories, namely, nailing strips for fastening flexible roofing sheetsis descriptive, and the Examiner cites two patents which show that it is old to hold roofing-tiles down by wire. Hence he takes the position that "Wyron" means that the roofing is held on by wire, and it is therefore descriptive.

Applicant says that the goods upon which the mark is used consists of

metal strips provided with perforations at intervals along their length through which nails are driven to secure them in place.

With this understanding of applicant's goods I cannot see how this word or even "wire on" could be in any way descriptive. There seems to be no wire used in connection with applicant's goods. Hence no one can use this word in connection with applicant's goods to describe any property or quality thereof or any feature connected therewith. A monopoly of the word " Wyron" would certainly take away from no one at present any word or words that would be useful in describing or advertising applicant's goods.

Hence the objection to registration should be withdrawn, and the action of the Examiner is reversed.